I can't remember actually if IRE contacted the firm for that or if it was otherwise a client, but that issue was very big in everybody's minds for a long time. Prior to 1950, a tax exempt organization could engage in any kind of business it wanted and there would be no taxes. So you had things like N.Y.U. (New York University) running a macaroni-spaghetti factory in competition with a bunch of other spaghetti factories. That was the most publicized example when in 1950, Congress decided that there should be an unrelated business income tax on tax-exempt organizations which were regularly engaged in a trader business that was not substantially related to its exempt purposes. IEEE, like many of its sister societies, and like many professional and technical societies, conducted a whole series of conventions and exhibitions. Very similar to what is being conducted today in Neurom , Intercon, Midcon, Southcon, Olmcon, Northcon, etc. But in those days, it tended to be more of a focus on a single international convention held in the New York Coliseum. IRE had conducted one of those for many years, as well as some regionals. I don't know what AIEE did but IEEE certainly had an Intercon, or whatever it was then called. There was no question that it was regularly carried on once a year and every year for this purpose. There was no question that it was a trader business. The issue was whether it was substantially related to IEEE's exempt purposes of disseminating technical information. Was it that or was it really just a forum in which rooms got rented and you collected rent or whatever you would like to call it so that people could show off their products? Our position was that this was substantially related because the booths were rented to electronics companies and electrical companies who were for the most part showing off technology at the cutting edge.

+

I can't remember actually if IRE contacted the firm for that or if it was otherwise a client, but that issue was very big in everybody's minds for a long time. Prior to 1950, a tax exempt organization could engage in any kind of business it wanted and there would be no taxes. So you had things like N.Y.U. (New York University) running a macaroni-spaghetti factory in competition with a bunch of other spaghetti factories. That was the most publicized example when in 1950, Congress decided that there should be an unrelated business income tax on tax-exempt organizations which were regularly engaged in a trader business that was not substantially related to its exempt purposes. IEEE, like many of its sister societies, and like many professional and technical societies, conducted a whole series of conventions and exhibitions. Very similar to what is being conducted today in Neurom, Intercon, Midcon, Southcon, Olmcon, Northcon, etc. But in those days, it tended to be more of a focus on a single international convention held in the New York Coliseum. IRE had conducted one of those for many years, as well as some regionals. I don't know what AIEE did but IEEE certainly had an Intercon, or whatever it was then called. There was no question that it was regularly carried on once a year and every year for this purpose. There was no question that it was a trader business. The issue was whether it was substantially related to IEEE's exempt purposes of disseminating technical information. Was it that or was it really just a forum in which rooms got rented and you collected rent or whatever you would like to call it so that people could show off their products? Our position was that this was substantially related because the booths were rented to electronics companies and electrical companies who were for the most part showing off technology at the cutting edge.

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There are certain parallels, but they were looking at the purpose of the law, which is to prevent an unfair competitive advantage to tax exempt organizations. The theory was that advertising carried in tax exempt organizations' publications competed directly with other publications, whereas taxed organizations basically did not operate trade shows. IEEE never had a big monetary exposure; I'm not sure if they ever had any monetary exposure on advertising, because I am not sure if it ever made any net income on its publications. I don't think that was good tax planning, but it was simply the way the economics worked out. It has never been that easy to draw tremendous amounts of advertising of a germane nature for IEEE publications. And IEEE has never wanted to have used car ads; they always wanted to limit the type of advertising.

+

There are certain parallels, but they were looking at the purpose of the law, which is to prevent an unfair competitive advantage to tax exempt organizations. The theory was that advertising carried in tax exempt organizations' publications competed directly with other publications, whereas taxed organizations basically did not operate trade shows. IEEE never had a big monetary exposure; I'm not sure if they ever had any monetary exposure on advertising, because I am not sure if it ever made any net income on its publications. I don't think that was good tax planning, but it was simply the way the economics worked out. It has never been that easy to draw tremendous amounts of advertising of a germane nature for IEEE publications. And IEEE has never wanted to have used car ads; they always wanted to limit the type of advertising.

=== Relationship of Long-Term Staff and Volunteers ===

=== Relationship of Long-Term Staff and Volunteers ===

Revision as of 15:26, 30 October 2008

About Jim Wiener

Jim Wiener served as IEEE's general counsel for over twenty years, until leaving corporate practice in 1987. During that time his primary practice involved corporate finance and acquisitions.

Jim Wiener offers a unique perspective on a variety of IEEE organizational issues. The interview begins with a discussion of the 1954 IEEE test case concerning tax liability on business income of tax-exempt organizations. Wiener discusses the impact that the potential liability had upon IRE/AIEE merger negotiations, and the eventual resolution of the case which exempted IEEE's exhibitions and technical conferences from business income tax. The interview continues with a discussion of the organizational relationship between long-term and volunteer staff of the IEEE, including the changing role of IEEE's general manager. Wiener comments upon the central debate within IEEE during the 1970s surrounding the role of professional activities. He relates this debate both to the issue of IEEE's involvement in various whistle blowing and discrimination cases as well as efforts on the part of USAE to redefine the scope of professional activities. The interview concludes with remarks regarding the focus of IEEE during the 1980s, comments on the contributions of several long-term staff members, and general views regarding the unique legal service needs of IEEE.

About the Interview

Interview # 049 for the IEEE History Center, The Institute of Electrical and Electronics Engineers, Inc. and Rutgers, The State University of New Jersey

Copyright Statement

This manuscript is being made available for research purposes only. All literary rights in the manuscript, including the right to publish, are reserved to the IEEE History Center. No part of the manuscript may be quoted for publication without the written permission of the Director of IEEE History Center.

Request for permission to quote for publication should be addressed to the IEEE History Center Oral History Program, Rutgers - the State University, 39 Union Street, New Brunswick, NJ 08901-8538 USA. It should include identification of the specific passages to be quoted, anticipated use of the passages, and identification of the user.

It is recommended that this oral history be cited as follows:

Jim Wiener, an oral history conducted in 1987 by Ronald Klein, IEEE History Center, Rutgers University, New Brunswick, NJ, USA.

Interview

Donovan-Leisure

Klein:

This is an interview with Jim Wiener, the long time counsel for the IEEE. My name is Ronald Klein and this is July 21, 1987. We are in the office of the Center for the History of Electrical Engineering. Jim, I thought we would start out with you telling us something about yourself, your Education, your background, and how your firm got involved with the IEEE.

Wiener:

I am forty-six years old. I was born and bred in the area and am a resident of the New York area. I went to New Rochelle High School, Amherst College, and Harvard Law School. I graduated in 1965 and went to work as an associate with Donovan, Leisure, Newton and Earline where I later became a partner. IEEE was already a client of Donovan-Leisure when I got there and it was the first client on whose matters I worked. IEEE's predecessor by merger, IRE, had been a Donovan-Leisure client since sometime in the 1940s or 1950s. I've seen files that went back to the early 1950s, and the major issue IRE was concerned with at the time was the question of whether its convention income or exhibition income would be subject to tax, which we will talk more about later, I am sure. That was an open question for many, many years and in fact it was the hot item when I went to work, and the first research memo that I ever did related to that issue. I started working out of a variety of IEEE matters at the time. I liked the people, I liked the variety of matters. I became the associate in the office working most directly on IEEE matters under the supervision of the partner in charge, John Tobin. John was a very important partner in the firm; he had more to do than he could handle and he believed in delegating, so within a couple of years I was really IEEE's primary counsel.

Klein:

That would have been about 1967?

Wiener:

1967 or 1968. Although officially John remained partner in charge until I became a partner in 1973, for the most part after 1968 or 1969 he sent out the bills. I became the partner in charge in 1973. When I switched law firms in 1984, after 19 years, John Tobin, three other people and I founded the New York office of the Minneapolis-based firm of Dorsey and Whitney. IEEE was one of the clients that happily came with us and I really have no broken record of representing IEEE for twenty-two years until July 2 of this year, when I left the corporate practice of law to go into private business. I wanted to do that for personal reasons and for a new challenge.

Klein:

What other type of clients did you represent during this twenty-two year period?

Wiener:

My primary practice was a combination of a general tax practice largely for corporations and an institutional practice relating to major financings and mergers and acquisitions. Representing IEEE was really an aberration for me; I was not a specialist in dealing with trade associations or professional societies. IEEE was my remaining foot in the door in being a generalist, and I loved it. Everything else that I worked on involved zero, zero, zero omitted or often six zeroes omitted. IEEE had no regular internal counsel; the size of our legal fees was never so high that it made sense for it, and I got all kinds of problems and just loved it.

Tax Exemption

Klein:

You mentioned earlier that the reason the IRE had contacted your firm was that tax matter. Do you think that would be a good thing to start out with?

Wiener:

I can't remember actually if IRE contacted the firm for that or if it was otherwise a client, but that issue was very big in everybody's minds for a long time. Prior to 1950, a tax exempt organization could engage in any kind of business it wanted and there would be no taxes. So you had things like N.Y.U. (New York University) running a macaroni-spaghetti factory in competition with a bunch of other spaghetti factories. That was the most publicized example when in 1950, Congress decided that there should be an unrelated business income tax on tax-exempt organizations which were regularly engaged in a trader business that was not substantially related to its exempt purposes. IEEE, like many of its sister societies, and like many professional and technical societies, conducted a whole series of conventions and exhibitions. Very similar to what is being conducted today in Neurom, Intercon, Midcon, Southcon, Olmcon, Northcon, etc. But in those days, it tended to be more of a focus on a single international convention held in the New York Coliseum. IRE had conducted one of those for many years, as well as some regionals. I don't know what AIEE did but IEEE certainly had an Intercon, or whatever it was then called. There was no question that it was regularly carried on once a year and every year for this purpose. There was no question that it was a trader business. The issue was whether it was substantially related to IEEE's exempt purposes of disseminating technical information. Was it that or was it really just a forum in which rooms got rented and you collected rent or whatever you would like to call it so that people could show off their products? Our position was that this was substantially related because the booths were rented to electronics companies and electrical companies who were for the most part showing off technology at the cutting edge.

Klein:

Now, was that particular decision arrived at in conversation between the firm and the officers of the IEEE? How did that particular consensus come about?

Wiener:

The facts were that those were the people, those were the companies that were renting booths, and these were the type of people who were going to see it. This was not like the Auto Show, also held at the New York Coliseum, where companies rented big booths, where they had cars and dancing girls and salesmen who gave out literature and tried to get you to place an order for cars. This was really technically oriented; I couldn't understand most of what was being said. In conjunction with the exhibition there were technical conferences, there one struggled to get past the titles, because they were pretty high-powered engineering stuff. However, things are very rarely 100% clear. You did have people manning booths who were trying to sell their products; that was one of their reasons for being there. They weren't just showing off technical knowledge, and they were even taking orders.

The Internal Revenue Service was really hot on this issue and virtually every technical society had questions raised during audits, but for one reason or other, the IRS never quite rushed to get it to court. When I came onto the scene in 1965, (I should say IRE, but from now on I am going to say IEEE encompasses IRE for pre-1963 years), IRE tax years were open going back to 1954. Tax year usually closes after three years, but if you don't want the kitchen sink thrown at you, when the IRS asks you to extend the statute of limitations so they can study it further, you usually say "yes" and sigh, and we did. The client did at our advice. The test year was going to be 1954. We were able to get the IRS to agree that instead of having to do a case that would have half a dozen or a dozen years at stake, we would have a test year and we would just litigate over the test year. While nobody would be legally bound as to the other years, as a practical matter people would be bound.

Wiener:

Now this was terribly important to IEEE. At the time of the merger, AIEE almost refused to go through with the merger because they said to IRE, "What's your net worth?" IRE told them and showed them their books, and they said, "What's your potential exposure on the tax case?" AIEE was terribly concerned that the net worth wasn't great enough to cover the potential exposure. This is something that you can get much more information on from Don Fink or John Tobin; it was a little bit before my time, but I remember very clearly reading file memos indicating that that almost held up the merger. Now the 1954 test case involved something like $50,000 or $100,000, not chicken feed but not a make or break liability. But if the results for the test year were going to control going forward, you were well into seven figures as to what the potential liability would be. Well into seven figures, maybe into eight as you got up unto the late 1960s. I think it was a very important victory that we got the IRS to agree to a test year, because we very much wanted to litigate the case in district court rather than tax court. To litigate in tax court, you didn't have to pay before you sued. To litigate in district court, you had to pay first and sue later. We couldn't afford to pay over a million dollars and the IRS was willing to have us be the test case for one year and just pay the $50,000 or $100,000 and sue on that and hold everything else in suspense. We thought the odds of winning the case were pretty good, but it was by no means open and shut. I can talk freely about this because this whole issue has long since been resolved by statute favorable to the taxpayer. The 1976 act contained a provision that put the last nail in the IRS's coffin on trying the tax. Before 1976, the IRS had conceded that if you didn't have a lot of selling and order taking then you weren't taxable. They had conceded that IEEE's facts were such that IEEE would win in the year in question. But there were still trying to litigate the issue with some people on the grounds that whatever the exhibition may have looked like, there was so much order taking and selling, that that really was just an opportunity to sell.

In any event, IEEE had a committee headed by a fellow who was retired and was a consultant to IEEE, either a volunteer or paid. His name was John Callihan. A very fine fellow; I think he is deceased now. This was either a committee or a task force or an ad hoc committee, but they wanted monthly status reports. I kept sending the monthly status reports that would say, "During the last month there were no new developments." The committee of engineers wasn't happy hearing that. It didn't sound like progress, and we had to meet with them quarterly and explain that no news was good news. They said, "But our youngest witness is eighty-two years old." That was Haraden Pratt. I am not kidding. By the time we finally got this case settled, I was getting scared because our youngest witness was about eighty-two years old. On the other hand, the government wasn't anxious to press the case and we felt if we kept stalling long enough, they would ultimately concede that they didn't want to deal with this through litigation. That in fact happened; in the late 1960s they gave up. They gave up for us, and gradually during the early 1970s they gave up across the board, but it was terribly difficult to convince both the volunteers and the paid staff that the best thing to do was very little because we were going to win through silence and inactivity.

Klein:

So the IEEE committee that was overseeing this business for the IEEE was by Callihan?

Wiener:

It was chaired by John Callihan. And committees like to do things. Every once in awhile — I guess about once a year — we would give them a report that said that the waiver on the statute of limitations had been signed for another year. Well, an endemic fact of representing or working with IEEE is that you've got paid staff who usually continue and you have volunteers who are sometimes referred to by the staff as a passing parade. Directors serve for two years and then are gone. They often come back in another incarnation, but every five years the same issue has come up over and over again. One example that comes to mind is the U.E.T. building. Should we build the north tower or sell the U.E.T. building and move somewhere else? That has come up every five years from 1966 to 1986. There is always a file, but there is a new generation of volunteers to be educated. Sometimes the new generation of volunteers has completely different ideas than its predecessors; sometimes it's informed and sometimes it's not.

Klein:

The tax status case was eventually resolved mostly from the IRS dropping the case, do you think? And the basic argument had been made before by the firm?

Wiener:

Oh, we had made the argument in briefs that we had presented informally to them, and there were congressional hearings on potential legislation. It wasn't really that we were doing nothing, it was that in the formal litigation posture we were doing nothing. Concurrently with the exhibition income being a big issue, there was a parallel issue: advertising agents. Is an organization like IEEE taxable on its advertising agent? Well, you win some and you lose some. This one never got to a litigation stage. The Internal Revenue Service proposed regulation interpreting the 1950 act which would by then be part of the Internal Revenue Code, saying that advertising is subject to tax. I won't go into technicalities. Just suffice it to say that they said it was a business separate from doing the publication, even if the editorial content is technical and the advertising isn't substantially related, even if the products and services that are being advertised are technical. But instead of trying to do this by going to court, they did it by proposing interpretive regulations. In the summer of 1967, on a day that was even hotter than today, John Tobin called me into his office and said, "There's this hearing down in Washington and I gather everybody in the world is speaking and maybe you better go down there and monitor what they are saying." I was just about to start my third year of practice at the time and there was no thought that I was going to speak, we had prepared a statement. I went down and listened to two days of hearings in an unair-conditioned building in Washington during a taxi strike with a hotel a mile and a half away. I thought that this was punitive. I don't know what I did wrong. But I called up about four o'clock the second day and said, "With friends like these, we don't need enemies. Really, it is absolutely clear that Congress is going to adopt adverse regulations and the general subject and our basic point is a technical one relating to how you allocate cost." I said, "I would like to speak," and he said, "What would you say?" I gave him an outline and he said, "Okay, put yourself on the list tomorrow." So, I spent a frantic night. Bear in mind that I was in Washington, our office is in New York, so I didn't have normal support services. I spent a frantic night with temporary secretarial services putting together a prepared statement that I could hand out according to the members of the panel, and a set of notes that I could speak from, and I spoke the next day. They listened because they were so sick and tired of having people yell, rant, and rave at them that someone coming in and giving them a rational approach, saying, "If you are going to adopt regulations, here are some modifications you ought to make," caught their attention. I won't say that all of them got into the final regs, but a few did. It was really a useful experience for me as a young lawyer.

Klein:

Why do you think the government viewed advertising income much differently from exhibition sales? There are certain parallels between them.

Wiener:

There are certain parallels, but they were looking at the purpose of the law, which is to prevent an unfair competitive advantage to tax exempt organizations. The theory was that advertising carried in tax exempt organizations' publications competed directly with other publications, whereas taxed organizations basically did not operate trade shows. IEEE never had a big monetary exposure; I'm not sure if they ever had any monetary exposure on advertising, because I am not sure if it ever made any net income on its publications. I don't think that was good tax planning, but it was simply the way the economics worked out. It has never been that easy to draw tremendous amounts of advertising of a germane nature for IEEE publications. And IEEE has never wanted to have used car ads; they always wanted to limit the type of advertising.

Relationship of Long-Term Staff and Volunteers

Klein:

You were talking about the relationship between the long term staff and volunteers. Did the volunteers have a sort of constant philosophy on what tax and advertising should be on publications?

Wiener:

I have no recollection on that. But I should point out that insofar as it was visible, the relationship between staff and volunteers was quite different in those days than today. When you went back to the IRE tradition — George Bailey, and Doc Baker dominated the board, and they used to come in and say, "There is a motion on the table, all in favor say 'Aye' and all oppose say, 'I resign'." At the time of the merger Don Fink became general manager and he didn't have anything like that kind of control or authority, nor did he want it. Conflict between volunteers and staff was much less visible and I suspect that it was because the organization was younger and roles weren't as well defined and you didn't have as many people who had worked their way through the organization before they got into a position of responsibility. You tended in those days to have on the IEEE board a lot more people who were the heads of companies or close to the heads of companies and who were pioneers. I am not sure if it's fair to make the comparison, because I was a lot younger and I am not sure if I viewed things differently, but I had the feeling that Don Fink usually had things pretty well under control, and he did everything by consensus while the board and the executive committee were active. I don't think there were as much supervision, as let us say, Eric Herz is subjected to now.

I should as an aside say that those are two men for whom I have absolutely the highest regard personally and professionally. I think that they were both absolutely superb. Don Fink was general manager from 1963 to 1974. He retired two years early not because he wanted to or needed to but because he thought that they had found the perfect successor and it was time to go and not be executive consultant and be in the guy's way. That was Judd Schulke, who for a variety of reasons was only here as general manager for a couple of years. I worked quite closely with Don over a decade; he was always unflappable, he always had command of the subject matter, he was articulate and literate. There were some things to be flappable about in those days, such as the controversy that led to the expansion of constitutional purposes to include professional concerns.

Judd Schulke

Klein:

You talked to me about Richard Emerson too. I thought before we went on you would say something about Judd Schulke. Perhaps you could characterize him in relationship to Don Fink and Richard Emerson.

Wiener:

I like Judd Schulke very much, he came into a very difficult position because following Don Fink was some difficult act. Judd had been a major general and he was used to chains of command. He tried to streamline the organization headquarters, have more of a chain of command: a very bright capable guy. He ran into political problems with the volunteers. He also felt that the technical activities of IEEE ought to be paramount. He agreed with the constitutional amendment that by then had passed, but he thought that professional activities were in danger of getting out of hand. After a while, some of the things that were being done were incompatible with the way he thought the organization ought to be run, and his period as general manager ended. I should say that it hadn't ended abruptly. He announced that he was going to do something else and that he would stay on and he did for a period of time and then the board decided it would be better to have Dick Emberson be acting general manager, and Judd went back to private industry.

The Bart Case

Professional Activities

Klein:

I know you said that the whole issue of the debate over the professional activities is very sensitive, but I was just curious. It seems like it was a major focus of the Institute during this period maybe from 1971 to 1977.

Wiener:

I think that is correct. How many professional activities should IEEE engage in? That is still a recurring question, but frequently it is a smokescreen for debate over a specific issue. It gets cast as an abstract philosophical question rather than an argument on the merits. One thing that I came to learn at IEEE executive committee and board meetings was that parliamentary procedure was often used as a way of getting a decision on the merits. After all, IEEE is not that different from other entities in that respect. But I hadn't seen it done as effectively as it was done by some leaders of IEEE who were really governing through knowing Roberts’ Rules of Order.

Cubic v. Marty

Klein:

We talked during the break about the Bart case. Will you describe your involvement with that case?

Wiener:

Well, my personal involvement in the Bart case was fairly small. The Bart case was a whistle blowing case. Engineers said that things weren't being done safely. They blew the whistle when they got fired, and it turned out that they were right. The controversy within IEEE was: how do you support an engineer who says that the system has shafted him, to put it very bluntly? Either because he had adhered to the code of ethics or the general ethical principles that don't have to be codified or because he was a victim of age discrimination or the like. That is a horribly difficult issue for IEEE. IEEE can and should enunciate statements of principle and did that very early on. Every once in awhile a case comes up where IEEE can intervene in a way that is not going to give it a lot of exposure legally or otherwise. I am thinking for example of the patent litigation that was entitled: Cubic v. Marty. I cannot put my finger, my mnemonic finger on precisely what the legal issue was, but everybody agreed on the facts. The question was whether the relevant point in time from a legal standpoint was early or late. IEEE was able to come out and file an amicus curiae brief with the court, taking the position that the relevant point in time from a legal standpoint was whenever it was. This brief incidentally was written by a volunteer, an IEEE member, who was a patent lawyer.

On request, I reviewed it to make sure that there was nothing in it inconsistent with IEEE policy that would get IEEE into trouble, but it was done on a "no clause" basis as a matter of principle. The basic concept involved in the case was protecting the employee against having to give a blanket assignment to his employer of all the contents in his head during the period in which he was employed. And IEEE's position was that if an employee does something strictly within the scope of his employment, on employer time, it ought to belong to the employer. But it shouldn't be assigning the entire contents of his head. Cubic v. Marty wasn't quite the entire head, but it took up most of the cerebrum. It was a difficult legal case, but it was an easy case for IEEE to file a brief in because it was taking a defined position on undisputed facts.

Klein:

And in the technical arenas.

Debate over Constitutional Purposes

Wiener:

And in the technical arena. When you got into whistle blowing or age discrimination, IEEE was regularly asked to intervene in court proceedings where the facts were pretty muddy, and IEEE could and occasionally did file a statement with the court or a legislature setting forth a pretty basic principle, but that isn't what the IEEE member was looking for. He was looking for support often — financial support — and without spending a fortune it would be impossible to discover whether this person, at the extreme, really had a case or whether he was using age discrimination as a smoke screen for being fired for incompetence. I guess I regularly advised IEEE that it just couldn't get into that arena. Maybe it could legally, though even that was questionable, but it just shouldn't.

Klein:

I was wondering if the change in constitutional status had any effect on any advice to the IEEE or on the IEEE's conception, whether it should get involved with legal cases like that? Does that define...?

Wiener:

Prior to the change in constitutional purposes in 1972, nobody even talked about getting involved in that kind of activity. This sort of activity came afterwards and the more conservative people in the organization said, "See. Once you start, the floodgates are completely open." Engineers frequently operate professionally using detailed sets of instructions and manuals. When they deal with legal and quasi-legal problems, they often would like to have detailed rules and manuals. This is most true of people who work with computers, I have found.

Klein:

Algorithms.

Wiener:

Algorithms. At one point we had a fairness-for-all doctrine that somebody wanted to reduce to a formula. And we had a long, long by-law that finally, fortunately, got thrown out, because you just can't write an operating manual to define fairness. You have to fall back on what in the traditional common law is known as: how would a reasonable man resolve the matter, or a reasonable person in this gender- neutral day and age. But there was a period when that got to be a problem because the more detailed the rules you drafted, the more they didn't cover the problem that would come up, and the more inferences that would be drawn from what you did cover. This isn't a problem unique to engineering. It's a terrible problem in the law today. Statutes get more specific and then you get all kinds of wild arguments about things nobody thought of where people argue that if the statute covered what it did, the legislatures must have meant not to cover the other thing. Or they must have meant to have dealt with it in a certain way. Anyone with any common sense knows that they didn't think of the problem.

Klein:

So on the Bart case, the IEEE would not have been allowed to file such a brief, if it had not been for the constitutional change?

Wiener:

Oh, yes! It would have been allowed to file such a brief. The constitutional change simply said that among the purposes are professional ones, including, by implication, filing briefs of this sort.

Klein:

You said there were some people higher up who perhaps said, "You are opening the floodgates in this type of activity." This was pointed out as an example of: "Now that we have changed the constitution we have opened the floodgates into more and more members expecting the IEEE to have this type of support."

Wiener:

Yes. As I said earlier, the 1970s was a time when people were trying to push IEEE's professional activities into an anti-employer campaign, not merely a pro-engineer campaign. I am speaking now in terms of what is my judgment, because there are no absolutes here. But in my judgment it is not anti-employer, it is perfectly legitimate and affirmative to define an engineer so that the public and the employer understands the difference, between someone who has engineering training and someone who has trained as a technologist. I am not making value judgments as to what jobs each can do, but I think it is very legitimate to know what an engineering degree is and what engineering training is. Then you can draw whatever conclusion you want but you shouldn't be using the term engineer wildly, like "sanitary engineer" for someone who comes and picks up the garbage. I think that it is very legitimate for IEEE to be trying to have an Educational campaign going that says to corporations, "This is a rapidly changing field technologically. If you don't provide adequate time off and facilities and other encouragement for your engineers to keep themselves current in their field, by the time they are forty or forty-five they are going to be burned out and useless and you are going to wind up just replacing them with younger engineers and turning them out with no place to go. And that is a very negative thing for society; we'll help provide programs, but the engineering profession needs the employer's cooperation. Very strong cooperation to avoid this happening." There are many positive things that IEEE has been doing and can continue to do in areas like this without turning anti-employer.

Klein:

I gather from what you said earlier that the change in the IEEE professional activities took place maybe in the late 1970s, away from this argument for anti-employer activities. I am not saying that IEEE took part in those, but there was a change in the type of professional activities being called for in the early 1970s or so.

Wiener:

Well, we are talking about matters of degree. As USAE matured it became clearer that it could play a positive and legitimate role within an overall IEEE framework — that it wasn't a natural collision situation.

Eric Herz

Klein:

Do you think that change would be associated with any group of people? The 1970s were a radical time; to me it is a reflection in the IEEE that fairly radical ideas were about. Things that have changed in personnel or maybe in....

Wiener:

Sure, there was a change in personnel, but I would be hard-pressed to put names and faces on particular ideas and even if I could I don't think I should. One of the important things that happened in 1978 was that the search for a new general manager culminated in Eric Herz, which surprised me greatly not because of any question about Eric's competence but because Eric had been on the executive committee in 1977 and I had gotten to know him some. And I was very surprised that he accepted the job. In fact Eric told me later that it took awhile before he thought that would be the right thing for him to do. He has been general manager since 1979; I think he has done an incredibly fine job with this organization. His one problem is that there is only one of him, that his job is too big for any one person because it involves being the head man inside and outside. Sooner or later IEEE is going to have to face up to the fact that it needs to reorganize its top staff so that there is somebody else on board who has more authority inside, freeing the general manager to spend more time working with the members of the board. Coordinating with thirty-three board members, ten of whom are on the executive committee involves an enormous amount of time. I don't care how many telephones you have, you don't have the time to make all the calls. In this day and age, computer mail, it's easier to get your message to people but on the other hand there are lots more people who want to get the messages to you and they do it instantly. It is really a very difficult job but I think he does it commendably.

Direction in the 1980s and 1990s

Klein:

IEEE's focus in the 1970s was on this main issue of professionalization and technical activities, for applicants what would you think the focus on the 1980s has been, if there has been just one focus for the 1980s for the IEEE?

Wiener:

That is a very hard question to answer because in the 1980s as in the 1970s, presidents are presidents for one year and they don't all go in the same direction. But what we are seeing in the last few years is that IEEE has become a mature organization. With the exception of a man who runs for president now and then and files lawsuits now and then, there is more harmony within IEEE than there was in prior years. There is more of an attempt to organize specific agendas to get one or two key things done each year rather than to try to cover a whole panoply. There is more of an attempt for strategic planning. For many years the vice presidents were asked to write out their goals, they were all in favor of apple pie. I was going to say that they were in favor of motherhood, but that is now controversial. There were the goals, and at the end of the year they would write another statement, discussing how well they had done toward achieving them. In the last few years I think we have seen more of a coordinated effort to synthesize the goals.

There has been an attempt to focus on one important thing internally and one important thing externally. The most important thing internally in the last couple of years has been to streamline the meetings. That may not sound important, but I believe it's terribly important. The board was taking two days to do what it ought to do in one. Things were going to the board and there would be a discussion and then they would be referred back to subordinate units for comment, which should have been done even before they got to the board agenda. This is crucial because if you take too much of a person's time, you are not going to be able to get important people to serve the organization. On the other hand, you can't make it so streamlined that the organization becomes autocratic. There has been a real attempt to balance that. There are shorter meetings, the meetings are more focused, and the consent agenda gets longer. The consent agenda simply says, "The chairs were furnished with the agenda, they have been thoroughly discussed before, this is a formal vote — does everybody vote? Yes." If anyone takes it off the consent agenda to discuss it further, they can, but it discourages people from talking just for the sake of talking. That is terribly important when you have twelve people at the Ex-Com and thirty-three at the board. And the board meeting tends to focus on a couple of important issues.

Now to external issues. I'll share something that I have been sharing with board members for the last three or four years, specifying then and now, but I am talking policy not law. I think the most important problem is educating the engineer who's on the verge of being squeezed out. IEEE's Educational programs of all kinds that are geared to the cutting edge are marvelous. They are absolutely at the top of the field relevant to other professions. But less attention is paid to the guy who isn't near the cutting edge. In fact, not only isn't he near the leading edge, but he is in danger of falling off the trailing edge, and this may not be his fault. He may have done an important middle management job with his company at the age of thirty-four, doing something very important but very narrow. In the meantime, the technology was going on. There has to be a way to keep him rolling with the current. I don't know what it is because I am no expert, but I think that this is occupying the attention of a lot of very key people. If it is possible to do this, I think IEEE will figure out a way to work on it, if they are really focused on it.

Observations about IEEE Personnel

Klein:

The last thing on my agenda here is observations about personnel, but throughout your talk you have made some very good characterizations of people. I was just wondering if there was anything you wanted to say about any of the people that you worked with. Are there any volunteers, presidents, or board members? You said things on Richard Emberson and Eric that we covered.

Wiener:

One thing I would like to do is say a couple of words about some long-standing members of the IEEE staff: three present and one recently deceased. The present ones are Woody Gannett, who is deputy general manager; Tom Bartlett, who is the chief financial man; and Betty Stillman, who is the director of corporate services. Each has served IEEE far beyond anything that you normally get from an employee of a commercial organization. They were veterans when I came on the scene in 1965. The fourth person I was referring to is the late Emily Sirjane, who had been Betty Stillman's predecessor as director of corporate services. She had always been involved with the members. She had had that position when she came over from IRE to IEEE. IEEE has been extraordinarily fortunate to have people like this with the organization; they aren't going to be with the organization forever. They are going to be very hard to replace. In terms of discussing volunteers, I'm hesitant to do that because there has been one president for each year. I have known some of them better than others, I have agreed with some more than others and I just don't know if that would be appropriate to discuss, particularly since I am afraid I would leave people out who have made really significant contributions.

Advice for Successor

Klein:

As Don Fink said, you certainly played an important role in the history of IEEE in the last twenty years. I was wondering if you had advice for your successor?

Wiener:

I've given it to them freely. IEEE has been kind enough to follow my recommendations. Well, I just don't mean kind enough, because I felt that this was in IEEE's best interests as well. IEEE is going to continue to use Dorsey and Whitney as its regular outside counsel for a while and see how it works out and I think that it will work very well. My successors are Jim Cahn and Bob Dwyer. Both are about 34 years old, they are young partners. Jim Cahn is primarily a litigator and Bob Dwyer is primarily a business lawyer. Most things that are done for IEEE fall somewhere in between; Jim Cahn is the fellow who handled the lawsuit a while back this year. My advice to them was to remember that they are not dealing with a monolith, but with a client that has no general counsel; legal problems that they are going to get are not going to be labeled as being an anti-trust problem or a tax problem or anything else. They are going to hear about a set of facts and objectives, and sometimes the question will be specific and sometimes it will be, "Would you read this and see if there are any problems?" And that they ought to come forward and say what's on their minds because they are both bright sensible people. They should distinctly label what's law and what's not and ask questions to make sure they understand what the issues are. In dealing with an organization such as IEEE, they will serve it badly if they limit their advice to legal matters. The only time that people have said to me, "Why don't you limit your advice to legal matters?" was when I said something labeled policy and they were on the other side of the issue. Then I would get somebody asking me, "What are the damn lawyers doing talking about that?" I advised against forming a pact and I really took some heat about that and I advised against it for nonlegal reasons. But over the years it has become more and more clear to me that an organization like this ought to be getting business- related input, policy-related input from its lawyer, which it is free to ignore.

Klein:

In conjunction with that, what would you think would be the most satisfying project you have worked on for the IEEE? That is a difficult question to answer.

Wiener:

The single most satisfying project as a project was the exhibition income tax case. That came early in my career and was a complete victory without having to fire a shot, and was of critical importance to my client. But the most satisfying thing about my relationship with IEEE has been the ongoing involvement in the affairs of this great organization. I really feel that way about it. It was wonderful having a chance to influence its direction and participating in charting the direction and working with so many brilliant, articulate people whom I like. I will really miss that; I already do.